What Kind of Justices Might a President Obama Appoint? Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable

By EDWARD LAZARUS
Thursday, Jul. 3, 2008

Now that the Supreme Court has erupted, as it does every year, with a set of end-of-term blockbuster opinions, political pundits have started focusing on the potential consequences of the presidential election on the future of the Supreme Court. Interestingly, however, Barack Obama’s reactions to these opinions have rendered predictions as to what kind of Justices he might appoint much more of a guessing game than one might previously have thought. While John McCain clearly will be toeing the party line, Obama has proved more independent-minded.

McCain’s Views on the Court’s Decisions: Exactly What One Might Have Expected

John McCain has made his position abundantly clear. In an attempt to invigorate the Republican Party’s conservative base, he has pledged to fill any Court vacancies with justices in the mold of Chief Justice John Roberts or Justice Samuel Alito – meaning rock-solid conservatives likely to be opposed to Roe v. Wade.

This vow is entirely consistent with McCain’s record of supporting all of President Bush’s appointments to the bench, as well as with McCain’s public reactions to the big end-of-term decisions. Aligning himself with both Roberts and Alito, McCain decried the decisions granting Guantanamo detainees access to habeas corpus and barring the death penalty for child rapists, while praising the Second Amendment decision recognizing an individual right to bear arms and striking down the DC handgun ban.

Obama: Not the Knee-jerk Liberal Republicans Had Predicted

McCain’s campaign has tried hard to contrast his judicial politics with those of Barack Obama, regularly declaring that Obama, if elected, would appoint to the Court wild-eyed liberals who want nothing better than to legislate their own moral and ideological agenda from the bench.

But Obama has largely confounded expectations, and Republican “spin,” by deviating from the standard liberal line in his approach to the recent Court decisions. It is true that, in sharp contrast to McCain and in step with the liberal wing of the Court, Obama embraced the decision allowing Guantanamo detainees to challenge their imprisonment through habeas corpus. But on the other two cases, Obama broke with the Court’s liberals and put little daylight between himself and McCain.

Like McCain, Obama sharply criticized the decision categorically banning the death penalty for child rapists. And while Obama did not enthusiastically embrace the Second Amendment ruling, he fully endorsed the Court’s unprecedented (and “conservative”) reading of the Second Amendment as including an individual right to bear arms (as opposed to merely a right to do so as part of a state militia).

Obama’s Reaction to the Court’s Decisions: Political Move, or Candid Commentary?

Political commentators have been quick to denigrate Obama’s responses as a calculated political move, aimed at defusing potentially vexing campaign issues. This is understandable. Democratic presidential candidates routinely attempt to inoculate themselves against the charge of being soft on crime -- and that goes double when the crimes in question are against helpless children. Moreover, no Democratic candidate wants to alienate the nation’s passionate gun owners, who number in the millions and are concentrated in states that may well decide the election.

I am not so naïve as to believe that politics plays no role in Obama’s thinking about these issues. But I also believe, just as strongly, that Obama’s approach to these cases reflects much more than mere political calculation.

Despite what some pundits have suggested, Obama did not suddenly discover his heterodox jurisprudential views as a presidential candidate; he has held them for years, and some even since law school. For example, Obama has long been on record as saying that the Constitution permits capital punishment as a general matter, and that some crimes are so heinous that society may be justified in taking the life of those who commit such crimes. His reservations about the death penalty, which surfaced early on in his Illinois legislative work, have focused on the enormous difficulties in carrying out a system of capital punishment is a fair and accurate way. Similarly, Obama had long ago stated his view that the Second Amendment protects an individual right to bear arms, subject to reasonable regulation – a position often associated with one of his mentors at Harvard Law School, Professor Laurence Tribe.

In light of this record, it seems reasonable to assume that Obama’s reactions to the end-of-term decisions provide a useful guide to his judicial philosophy and his likely approach to judicial appointments.

What Obama’s Remarks Regarding This Term’s Decisions Suggest About His More General View of the Court’s Role

As I see it, Obama’s views about the Court’s end-of-term decisions reflect a commitment to three extremely fundamental concepts: first, to the rule of law and the system of checks and balances that protects it; second, to judicial modesty and a concern about judges substituting their own moral judgments for those of elected representatives; and, third, to a willingness to take the Constitution’s text, history and tradition seriously in constitutional interpretation, even when this methodology leads to uncomfortable results.

The basic idea behind the 5-4 decision allowing Guantanamo detainees access to habeas corpus is that the Executive Branch should not be able to lock up people indefinitely on its own say-so – and that even Congress cannot give the Executive this authority. The Court was also rejecting the idea that the Executive can somehow place detainees beyond the reach of the law by housing them at Guantanamo, where the United States maintains total control but not actual sovereignty.

In defending this decision, Obama placed himself squarely in the camp of those who recognize that the increase of governmental power that necessarily attends an aggressive fight against terrorism requires vigilant attention to the constitutional checks and balances that are designed to thwart the abuse of governmental power (including, in the Guantanamo cases, the constitutional prohibition on Congress’s suspending the writ of habeas corpus). In other words, Obama is likely to appoint judges skeptical of claims of unreviewable authority, and sympathetic to readings of the Constitution that emphasize governmental accountability.

This view of the Constitution entails a significant role for the judiciary as a check on the other branches of government. However, as Obama’s response to the decision striking down the death penalty for child rapists shows, he is no fan of judicial self-aggrandizement.

As indicated by his criticism of that decision, in Obama’s view, it is one thing for the judiciary to play referee among the three co-equal branches of government, and quite another for unelected judges to second-guess the moral judgments of elected legislatures using highly elastic readings of the Constitution.

In the child rape death penalty case, the Court declared that putting persons to death for any crime other than murder offends our “evolving standards of decency” – and, thus, violates the Eighth Amendment’s ban on cruel and unusual punishments. But this judicially-created yardstick of “evolving standards of decency” has always invited judges simply to substitute their own moral judgments about “decency” for those of elected representatives, including, in the child rapists case, the elected representatives of the six states that (along with the federal government) authorize the death penalty for this crime.

In questioning this decision, Obama has indicated that he shares the concern often (but not exclusively) expressed by conservatives that unelected judges ought not use the expansive phrases of the Constitution to set themselves up as a super-legislature, second-guessing the policy judgments of elected officials. This instinctual preference towards democratic rule may ruffle the feathers of unreconstructed defenders of Justice William Brennan’s style of liberal jurisprudence, but it should be welcomed by the rest of us.

Much the same goes for Obama’s approach to the Second Amendment and the Court’s decision to void the District of Columbia’s handgun ban. It seems pretty clear that Obama himself doesn’t have much affinity for guns – we see no orchestrated photo ops, for instance, with the candidate dressed up in camo. And he may well have some sympathy with DC legislators’ trying to curb gun violence through a handgun ban.

But one of the great problems with the Court in the modern era has been the willingness of the justices to abandon their usual interpretive methods when those methods point towards disfavored results. (So it is, for example, that Justice Antonin Scalia’s much-trumpeted attachment to the jurisprudence of original intent basically disappears in affirmative action cases, where original intent does not, in fact, suggest the outright prohibition Scalia favors). At a minimum, Obama’s approach to the Second Amendment suggests that he will look for judicial appointees who value internal consistency in their respective jurisprudences at least as much as they do the results to be reached in individual cases.

As the presidential campaign unfolds, the issue of judicial philosophy, abstract though it is, is likely to gain increasing attention. When it does, in this area, as in others, the choice this time around will not be between old-time conservative and old-time liberal, but between conservative and something largely defiant of labels.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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